Dent v. Encana Oil & Gas, Inc.

• Decision Date: 17 February 2016
• Docket Number: Civil Action No. 15-cv-01800-CMA
• Citation: 166 F.Supp.3d 1210
• Court: U.S. District Court — District of Colorado
• Parties: Ronald L. Dent, individually and on behalf of all others similarly situated, Plaintiff, v. Encana Oil & Gas, Inc., Defendant.

166 F.Supp.3d 1210

Ronald L. Dent, individually and on behalf of all others similarly situated, Plaintiff,

v.Encana Oil & Gas, Inc., Defendant.

Civil Action No. 15-cv-01800-CMA

United States District Court, D. Colorado.

Signed February 17, 2016

John A. Neuman, Don J. Foty, Kennedy Hodges, L.L.P., Patrick Kevin Leyendecker, Ahmad Zavitsanos Anaipakos Alavi & Zavitsanos, PC, Houston, TX, for Plaintiff.

Matthew David Spohn, Norton Rose Fulbright US LLP, Denver, CO, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO COMPEL ARBITRATION (DOC. # 9)

CHRISTINE M. ARGUELLO

, United States District Judge

This matter is before the Court on Defendant Encana Oil & Gas (USA) Inc.'s Motion to Compel Arbitration of Plaintiff's Individual Claims and to Dismiss or, Alternatively, to Close or Stay Litigation. (Doc. # 9.) Plaintiff concedes that his claims must be arbitrated, and he has, in fact, initiated arbitration of those claims against Defendant, therefore, Defendant's request for an order finding the arbitration provision valid, enforceable, and applicable to Plaintiff's claims and compelling Plaintiff to arbitration is denied as moot. The Court finds that the arbitration clause in the agreement signed by Plaintiff and Defendant authorizes the arbitrator to interpret the agreement and determine whether it permits Plaintiff's collective and class action claims to proceed in arbitration; therefore, Defendant's request for an order finding that Plaintiff's collective and class action claims are not permitted to proceed in arbitration is denied. Defendant's request for an order administratively closing this litigation is granted.

I. BACKGROUND

Plaintiff Ronald Dent worked for Defendant as a well site supervisor from, approximately, May 2007 to December 2014. (Doc. # 3 at 4.) Plaintiff claims that Defendant misclassified him and other well site supervisors as “independent contractors” and, therefore, violated the Fair Labor Standards Act (“FLSA”) when it failed to pay “time and a half” for work in excess of 40 hours per week. (Doc. # 3 at 1.) On August 20, 2015, Plaintiff filed a complaint, which he amended that same day, alleging violations of the FLSA and the Colorado Wage Claim Act (“CWCA”). (Doc. # 3.) In addition to prosecuting these claims on his own behalf, Plaintiff seeks to bring his FLSA claim as a collective action and his CWCA claim as a class action. (Doc. # 3 at 11-16.)

On October 2, 2015, Defendant moved to compel arbitration. (Doc. # 9.) In support of its motion, Defendant cites an arbitration provision in the governing contract between Plaintiff and Defendant, which provides:

Arbitration. Any disputes between the parties arising out of or in connection with this Agreement shall be fully and finally settled by arbitration, before one arbitrator, in accordance with the most current International Institute for Conflict Prevention and Resolution (“CPR”) Rules for Non-Administered Arbitration. Such arbitration shall be conducted in Denver, Colorado. Each party shall pay its own costs and attorneys fees.

(Doc. # 9-2 at 10.) In its motion, Defendant asks the Court to:

(1) rule that the arbitration provision in the parties' Master Services Agreement (Ex. A ¶ 26) is valid, enforceable, and includes Plaintiff's individual claims;

(2) rule that only Plaintiff's individual claims are arbitrable and that the collective and class action allegations are not arbitrable under the parties' agreement; and

(3) compel arbitration between the parties on Plaintiff's individual claims, and dismiss Plaintiff's claims or, alternatively, administratively close or stay this litigation.

(Doc. # 9 at 1.)

On October 16, 2015, Plaintiff filed the consent of Mickey Peck to opt-in to Plaintiff's FLSA collective action. (Doc. # 10.) Defendant has not moved to compel arbitration with Mr. Peck.

On October 26, 2015, Plaintiff responded to Defendant's motion to compel arbitration. (Doc. # 12.) In his response, Plaintiff states that he “does not oppose [Defendant's] request to proceed in arbitration” (Doc. # 12 at 4) and that he “has initiated his claim in arbitration.” (Doc. # 12 at 2.) On November 9, 2015, Defendant filed a reply in further support of its motion to compel arbitration. (Doc. # 14.)

II. DISCUSSION

Plaintiff concedes that his claims must be arbitrated, and he has, in fact, initiated arbitration of those claims against Defendant. (Doc. # 12 at 4.) Thus, Defendant's motion is moot to the extent that it seeks an order finding the arbitration provision valid, enforceable, and applicable to Plaintiff's claims and compelling Plaintiff to arbitration. However, the parties continue to dispute whether Plaintiff may pursue his collective and class action claims in arbitration and, as a preliminary matter, whether it is the Court or the arbitrator who determines whether Plaintiff's collective and class action claims can proceed in arbitration. Plaintiff believes that the arbitrator should determine whether Plaintiff can arbitrate his claims as collective and class actions (Doc. # 12 at 6); whereas, Defendant argues that the Court should make this determination (Doc. # 14 at 3). If the Court were to conclude that it is the Court's decision, Defendant argues that the Court should find that Plaintiff's collective and class action claims cannot proceed in arbitration; Plaintiff, on the other hands, argues that his collective and class action claims should be allowed to proceed in arbitration.

With regard to the primary question— whether the Court or the arbitrator determines whether Plaintiff's collective and class action claims can proceed in arbitration—Defendant frames the issue as one of “arbitrability” and asserts that, because the parties have not expressly agreed to submit the question to the arbitrator, it is for the Court to decide. (Doc. # 9 at 11.) In support of its position, Defendant cites Opalinski v. Robert Half Int'l Inc. , 761 F.3d 326 (3d Cir.2014)

, cert. denied , ––– U.S. ––––, 135 S.Ct. 1530, 191 L.Ed.2d 558 (2015), and Reed Elsevier, Inc. v. Crockett , 734 F.3d 594 (6th Cir.2013), cert. denied , ––– U.S. ––––, 134 S.Ct. 2291, 189 L.Ed.2d 173 (2014).

Plaintiff, on the other hand, argues that “Tenth Circuit case law mandates that the arbitrator is to determine whether the agreement allows for class/collective actions in arbitration.” (Doc. # 11.) In support of his position, Plaintiff cites Green Tree Financial Corp. v. Bazzle , 539 U.S. 444, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003)

.

As an initial matter, the Court observes that—despite Plaintiff's contention—there is no precedent binding on the Court on this particular issue. The Tenth Circuit has not addressed the issue presented here and, although five Justices concurred in the judgment in Bazzle

, only three other Justices joined the plurality opinion written by Justice Breyer. While the plurality opinion in Bazzle is not binding precedent, the Court nonetheless finds it persuasive. The Court also notes that another court in the District of Colorado to have addressed this issue determined that the arbitrator should decide whether the claims could proceed in arbitration on a class-wide basis. See

Fisher v. General Steel Domestic Sales, LLC , Case No. 10–cv–1509, 2010 WL 3791181 (D.Colo. Sept. 22, 2010).

Bazzle

involved a dispute between a commercial lender and its customers. Bazzle , 539 U.S. at 447, 123 S.Ct. 2402. The parties had entered into a contract with an arbitration clause that, in part, stated the following:

ARBITRATION – All disputes, claims, or controversies arising from or relating to this contract or the relationships which result from this contract ... shall be resolved by binding arbitration by one arbitrator selected by us with consent of you.

Id. at 448, 123 S.Ct. 2402

.

The issue presented in Bazzle

was whether the South Carolina Supreme Court's holding that the contract permitted class arbitration was consistent with the Federal Arbitration Act (“FAA”). Id. at 447, 123 S.Ct. 2402. The plurality opinion did not reach this question, however, because it determined that whether the agreement permitted class arbitration “is a matter for the arbitrator to decide.” Id. Because the parties had “not yet received an arbitrator's decision on that question of contract interpretation,” the Court vacated the judgment and remanded the case “so that this question may be resolved in arbitration.” Id.

In reaching the conclusion that the arbitrator should decide whether the agreement permitted class arbitration, the plurality opinion relied on “the terms of the parties' contracts” and, specifically, the language in the arbitration clause stating that the parties agreed to submit to binding arbitration “[a]ll disputes, claims, or controversies arising from or relating to this contract or the relationships which result from this contract.” Id. at 451, 123 S.Ct. 2402

(emphasis added). The plurality opinion found that “the dispute about what the arbitration contract in each case means (i.e. , whether it forbids the use of class arbitration procedures) is a dispute ‘relating to this contract’ and the resulting ‘relationships.’ ” Id. Therefore, it concluded, “the parties seem to have agreed that an arbitrator, not a judge, would answer the relevant question.” Id. at 452, 123 S.Ct. 2402. The plurality opinion also found that, if there is doubt about whether an issue should be arbitrated, a court “should resolve that doubt ‘in favor or arbitration.’ ”

Id.

(quoting Mitsubishi Motors Corp. v. Soler Chrysler

–

Plymouth, Inc. , 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) ).

In a separate opinion in which he concurred in the judgment, Justice Stevens stated that he would “simply affirm the judgment of the Supreme Court of South Carolina” because “the decision to conduct a class action arbitration was correct as a matter of law” and the petitioner simply challenged the merits of the decision, not who made it. Id. at 455, 123 S.Ct. 2402

. Although Justice Stevens did not reach...